[2024] EWHC 1071 (TCC)

A case management conference was held on 27th January 2023 and directions given by O'Farrell J. As is the usual practice in the Technology and Construction Court, the experts were directed to meet on a without prejudice basis before the exchange of their reports. The purpose of that direction is that it encourages experts to express independent opinions without any concern that they are departing from what they have already committed to writing in their reports, and that their reports will then be limited to the matters which are still in dispute. Although that ought to encourage briefer reports, experts not uncommonly end up explaining what they have agreed and why. Sometimes that is genuinely necessary in order to enable the court to understand the effect of the agreements that they have reached, or to explain the areas of disagreement that remain. Sometimes it is, at best, unnecessary and, at worst, confusing. Which is it is necessarily case specific.

In this case, time for service of the experts' reports, limited to the expert issues remaining in dispute, was 5.00pm on 15th March 2024. Provision was made for the experts to attend trial if they were not in substantial agreement on all matters. It is relevant to the decision that I have reached that both parties, in my view, have taken an excessively literal approach to that direction, and it has resulted in a highly unsatisfactory position at this pre-trial review.

In this case, the experts are, for the claimant, Dr. Jim Huggett, Science Fellow and Director of Biological Metrology at the National Measurement Laboratory in Twickenham, and, for the defendants, Dr. Marilyn Owens of Medical Laboratory Strategy & Leadership, Sundance, Wyoming. I have been told that both experts are, at least in this jurisdiction, first time experts, and that is hardly surprising given the particular subject matter on which they have been asked to express their opinions.

The parties agreed a high level list of issues for the experts to address. They met without prejudice as directed to address those issues and produce their joint statement dated 15th February 2024, which recorded a very substantial measure of agreement and only one area of disagreement.

On 23rd February, the defendants' solicitors wrote to the claimant setting out their concerns about the joint statement and, amongst other things, that the experts had gone beyond their remit and in doing so had proceeded on the basis of findings of fact which they were not entitled to make or incorrect views of the facts or incorrect assumptions as to the facts. They said that they elected not to be bound by the joint statement, following Part 35.12(5), and intended to ask Dr. Owens to produce a report on all matters, whether agreed or not agreed on the face of the joint statement, and they asked for an extension of time to the end of March for exchange.

That was not acceded to. Dr. Huggett's report on the limited matters not agreed was filed on 15th March, 2024. No report from Dr. Owens was or has been filed.